State v. Royal

• Decision Date: 10 May 1975
• Docket Number: No. 47684,47684
• Citation: 217 Kan. 197,535 P.2d 413
• Parties: STATE of Kansas, Appellant, v. Henry ROYAL, Appellee.
• Court: Kansas Supreme Court

Page 413

535 P.2d 413

217 Kan. 197

STATE of Kansas, Appellant, v. Henry ROYAL, Appellee.

No. 47684.

Supreme Court of Kansas.

May 10, 1975.

Syllabus by the Court

1. The statute of limitations does not fully define the due process rights of an accused with respect to delays occurring prior to indictment of filing of a complaint.

2. The rights of a defendant under the due process clause of the Fifth Amendment are not violated by pre-accusation delay in the absence of a showing that actual prejudice resulted from the delay and that the delay was intentionally designed to gain tactical advantage over the defendant or to harass him.

3. The possibilities of prejudice inherent in extended delay in the filing of charges are not of themselves sufficient to demonstrate that the accused cannot receive a fair trial.

4. Some pre-accusation delay may be necessary to the effective prosecution of certain types of crimes such as narcotic offenses where it is necessary, in the public interest, to use undercover agents to discover and eliminate the source of contraband drugs.

5. Alleged errors at the trial level are not to be considered on appeal unless objected to at the proper time.

6. The record is examined in an action wherein a motion for discharge was sustained at a pretrial hearing and for reasons appearing in the opinion it is held the trial court erred in discharging the defendant and dismissing the case.

Margaret W. Jordan, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and J. J. B. Wigglesworth and David W. Hughes, Asst. Dist. Attys., were with her on the brief for appellant.

Hugh H. Kreamer, Breyfogle, Gardner, Martin, Davis & Kreamer, Olathe, argued the cause and was on the brief for appellee.

FONTRON, Justice:

This appeal is by the State of Kansas from a pretrial order sustaining the defendant's motion for discharge. The motion was predicated on the state's delay in filing charges against the defendant, Henry Royal.

There is little, if any, dispute as to the facts. The state alleges that on two occasions, November 16 and November 19, 1973, the defendant possessed for sale and sold marijuana, a controlled substance. The two sales were allegedly made to an undercover agent, Bob Allen, who was connected at the time with the Johnson County sheriff's office.

A complaint was issued May 3, 1974, and the defendant surrendered himself on May 22, having learned the police were looking for him, and after conferring with his attorney. A preliminary hearing was commenced June 11 and completed July 1, at which time Mr. Royal was bound over to the district court for trial. Mr. Allen testified for the state at the hearing.

Prior to arraignment, the defendant filed his motion for discharge. An evidentiary hearing was held at which two witnesses appeared: the defendant and Detective Davies, the supervisor of the county drug unit. Bob Allen did not testify. The trial court made findings of fact and conclusions of law and determined that the defendant should be discharged.

From the evidence adduced at the pretrial hearing the trial court found that the defendant 'does not remember having previously seen' Mr. Allen prior to the time he testified at the preliminary hearing; that Allen had reported the alleged sale of marijuana on November 26; that Detective Davies could have arrested defendant for the offenses on the dates they allegedly occurred but intentionally and deliberately elected not to do so; that Mr. Davies' memory was not as good now as it was on November 16, that he hadn't the slightest idea of what he did on that date unless he would refer to his notes, and he did not remember when he turned the information over to the district attorney's office; and that Davies had on many occasions in the past made arrests on seeing crimes committed, such as sales of marijuana, without a chemical analysis.

Other pertinent portions of the court's opinion are as follows:

'The court determines as a matter of law that a police officer, upon learning that a felony has been committed, has a duty to take steps necessary to effect the arrest of the felon, without unnecessary delay.

'The court determines as a matter of law that in accordance with the holding in the case of Ross against the United States, (121 U.S.App.D.C. 2331) 349 F.2d 210, decided in 1965, and the case of People against Hernandez, (Mich.App.,) 166 N.W.2d 281, decided in 1969, and other cases of similar import, that procedural due process requires a timely arrest in order to allow a defendant the use of his memory to determine the existence of res gestae witnesses and to prove his defense.

'The court further determines as a matter of law that in the absence of an affirmative and convincing explanation of a delay in making an arrest where the defendant is prejudiced in making a defense, it must be presumed that due process is violated.

'The court further determines that delay in making an arrest in a narcotic case can only be tolerated and not be the basis for a finding of lack of due process when, 1, the delay is explainable, and by explainable the court is interpreting that term to mean justifiable; 2. When it is not deliberate; and 3, when no undue prejudice attaches to the defendant.

'In this case the court determines that the delay in making the arrest is not justifiable, that it is deliberate and intentional, and that prejudice attaches to the defendant by reason of the delay.'

The state lists six points of error in challenging the court's decision. In a general way it may be said they refer to the pretrial nature of the hearing, to certain findings of the court and to the legal basis on which the court concluded that due process had been violated.

Although this court has had no occasion to consider the effect of delays occurring prior to the filing of formal charges, the question is not exactly new or novel. It has cropped up a good many times in other jurisdictions, especially in the courts of the federal judicial hierarchy. As we read the various cases dealing with the subject they tend to divide generally along three lines.

First, there is authority that a delay occurring between the time of an offense on the one hand, and the indictment or filing of a complaint on the other, is controlled by the applicable statute of limitations, not by the guarantees of speedy trial written in the Sixth Amendment. (United States v. Judice, 457 F.2d 414 (5th Cir.); United States v. Harris, 412 F.2d 471 (6th Cir.); Lothridge v. United States, 441 F.2d 919 (6th Cir.).)

In Nickens v. United States, 116 U.S.App.D.C. 338, 323 F.2d 808, the court spoke in this wise:

'Appellant's claim relating to the delay between the date of the offense and the commencement of criminal prosecution is not covered . . . by the Sixth Amendment, but rather it relates to the running of the applicable statute of limitations. (Citing cases.)' (p. 809.)

It is only fair to say at this point, however, that the state 'does not take the extreme position that (it is) restrained only by the statute of limitations.'

A second and less restrictive rule-and on which the trial court hung its hat-was applied in Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210, and People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851. In the Ross case the court observed that the record showed '(1) a purposeful delay of seven months between offense and arrest, (2) a plausible claim of inability to recall or reconstruct the events of the day of the offense, and (3) a trial in which the case against appellant consists of the recollection of one witness refreshed by a notebook.' On the basis of that record the court held due process had been infringed. The court went on to say, however:

'. . . Without attempting to define the precise reach of the Fifth Amendment in this context, a due regard for our supervisory responsibility for criminal proceedings in this jurisdiction requires, in our view, the reversal of this conviction.' (p. 216.)

Before leaving Ross, which was decided by a divided court, two to one, we should mention that the decision has generally been regarded as being based primarily on 'an exercise of (its) supervisory power.' (Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705.) In United States v. Sanchez, 361 F.2d 824, the second circuit Court of Appeals said Ross 'grew out of the court's concern over a pattern of cases and its desire to carry out its function of 'supervisory responsibility for criminal proceedings' involving the District of Columbia Metropolitan police force.' The same view is expressed in Dancy v. United States, 129 U.S.App.D.C. 413, 395 F.2d 636, where the court stated:

'. . . We regarded Ross more as a challenge to the police than as a license-a challenge to exhibit some awareness of the very real dangers of misidentification lurking in the narcotics undercover agent practice, and to endeavor consciously to devise methods and procedures which would reduce those dangers as much as possible consistent with effective law enforcement.' (p. 638.)

The Hernandez case phrases the rule in somewhat different language. In ruling that procedural due process was lacking, the Michigan court spoke in these words:

'. . . We recognize that a delay may not be unusual in narcotics and counterfeiting cases, in order to allow proper inquiry into the whereabouts and sources of the contraband; however, where some prejudice is shown, as it is shown in this case, it can be permitted and not be the basis for a finding of lack of due process only where the following elements are present and shown clearly and convincingly of the trier of fact: (1) when the delay is explainable, (2) when it is not deliberate, (3) where no undue prejudice attaches to the defendant.' (15 Mich.App. p. 147, 170 N.W.2d p. 854.)

On a factual basis Hernandez is readily distinguishable from the case at hand. There, the defendant was referred to as 'an uneducated, illiterate man who neither...